In the course of writing this book these revised standards have gone through a further refinement and are set forth here in the form of a segregation code, not as a final draft, but as a responsible proposal which seeks to be fair to prison administrators and to prisoners. The full text of the code will be found in the appendix.

It is clear that prison authorities regard it as imperative that in certain circumstances they be able to segregate prisoners while they conduct investigations of incidents that pose serious threats to the security of the institution or to persons within it. In my view this is a legitimate institutional interest. To permit segregation, however, purely for investigative purposes without either substantive or temporal limitations invites abuse of this power. Therefore, I propose that the warden be authorized to segregate,

l(a) pending the investigation of allegations which on reasonable and propable grounds, implicate the prisoner in

(i) attempted escape;
(ii) possession of dangerous contraband;
(iii) actual or threatened violence to another person or incitement to violence of other prisoners;
(iv) wilful destruction of property where there is a substantial likelihood that the destruction will be continued;
(v) refusal to obey the lawful order of an institutional officer where there is a substantial likelihood that the refusal will be continued and will lead to widespread disobedience by other prisoners.

(b) pending the investigation of an alleged disciplinary or criminal offence where there is a substantial likelihood that the prisoner will intimidate potential witnesses to the offence.

In order to prevent subsection l(a) from becoming a general justification for segregation and to avoid the situation I observed at Kent (where prisoners were kept in segregation for over three months pending an investigation), I propose that no prisoner shall be kept in segregation under this subsection for more than two weeks unless evidence is presented to the hearing officer that all due diligence has been exercised by the authorities in pursuing their investigations and that further time is needed to complete those investigations. If it is demonstrated that there has been due diligence and that further time is needed, the code places an overall one-month limit on segregation pending investigation: given the relatively focused nature of investigations into offences committed in prisons and the accessibility of people to be interviewed, a month is a reasonable length of time for completion of the investigation and the laying of charges. The only exception to this time limit would be in the case where there is a riot or other incident that involves extensive interviewing of many witnesses. The code provides for this exception, and further requires a clear demonstration that the nature and extent of the investigation justifies an extended period. The code further provides that if segregation beyond the two-week period is being sought and, a fortiori, investigation beyond the one-month period, it must be justified against the more stringent criteria of section 2. Section 2 is concerned with segregation after charges have been laid but prior to trial. The intent of this provision is to accommodate legitimate institutional interests in permitting segregation while an investigation is underway and to place a prisoner in a no less favourable position than he would have been in if the investigation had been speedily completed.

Where charges have been laid against a prisoner and are pending, either before an internal disciplinary board or in outside criminal court, segregation is authorized where

2(a) the offence, if proved. will lead to an increased security rating of the prisoner. requiring his transfer to another institution;

(b) the offence involves actual or threatened violence to another person or incitement to violence of other prisoners and there is a substantial likelihood that

(i) the offence will be continued or repeated or
(ii) there will be violent reprisals by other prisoners;

(c) the offence involves the wilful destruction of property where there is a substantial likelihood that the destruction will be continued;

(d) the offence involves the refusal to obey the lawful order of an institutional officer and there is a substantial likelihood that the refusal will be continued and will lead to widespread disobedience by other prisoners;

(e) the prisoner, at the time of being charged with an offence, reacts in a violent or uncontrolled manner.

A prisoner detained under subsection (e) shall be released from segregation as soon as he has ceased to act violently and has regained control.

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